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The repeal amendment

I sent the following letter to Virginia’s state senators and delegates today.

The Virginia General Assembly this month will be one of the first state legislatures in the Union to take up the proposed “repeal amendment” to the United States Constitution (hereinafter, “amendment”) under which two-thirds of the state legislatures may overturn a federal law or regulation. The amendment is impractical and inefficient, and it would overturn more than just specific federal laws and regulations. It would disrupt the carefully balanced governmental structure the Constitution’s Framers set in motion in 1789. Virginia’s legislature would be ill advised to approve the call for a constitutional convention to ratify the amendment.

Some of my fellow Virginians probably feel something like pride of authorship in the amendment, which has gained the support of key officeholders in at least twelve state governments. After all, some Virginians got the ball rolling by contacting Georgetown Law Professor Randy E. Barnett about the amendment, which he had proposed in a 2009 Forbes.com column. Mr. William Howell, the Speaker of our House of Delegates, co-authored the Wall Street Journal op-ed piece with Professor Barnett that first gave the amendment considerable national attention. Governor McDonnell and Attorney General Cuccinelli are both on record as supporting the amendment. But pride of authorship should have no part in your chambers’ respective deliberations over this amendment.

The amendment would shift the federal balance of power away from the people to the states. As a practical matter, two-thirds of the states hold less than a third of the country’s population. Therefore, a small majority in each of those smaller states could veto the will of the vast majority of Americans as expressed by their representatives in Congress. Virginia, of course, is the twelfth most populous state, so the amendment would lessen the voice of Virginians in a federal system.

State legislatures have no business deciding federal issues, and taking up federal issues would consume an inordinate amount of a state legislature’s time and resources. As you know from experience, Virginia’s legislature, like that of every state in the Union, has enough state and local issues to keep it busy each legislative session. Every federal law has its detractors, and the number and strength of those detractors would require that each federal law be the subject of rehearings before at least two-thirds of the Union’s state legislatures. Imagine the time and expense of such a system.

Imagine also the uncertainty that would attend the passage of any federal law. Although every law is subject to repeal by the legislature passing it, few assume that the same legislative body passing a law would soon repeal it. The amendment, though, would put every federal law before fifty separate legislatures for consideration. The reliability of any federal law would never be settled, for a two-thirds vote might be obtained at any time after the law’s passage.

This uncertainty would extend even to federal administrative regulations and federal case law generated by the United States Supreme Court on down. To take their new role seriously, the state legislatures would have to gain expertise in the fields in which the federal agencies and federal courts practice. Upon obtaining that expertise, each state legislature would have to have each matter reheard. I assume rules would be promulgated and experts would be hired for this purpose. Imagine the cost in the state legislature’s time and the cost to the taxpayers to have these matters reheard or relitigated, as the case may be.

The amendment would transform our federal system into something worse than the weak and inefficient Articles of Confederation the people of the United States struggled under for over a decade before ratifying the Constitution. The Articles of Confederation gave each state an equal vote on federal questions, and it required that nine of the thirteen states (around sixty-nine percent) vote in favor of most bills for them to become law. Although the amendment would require a much smaller percentage of states to approve of a federal law, it would give the final word on the law to the state governments and not to any form of federal government. The state legislatures would have the last word on every federal statutory law, case law, or regulation. The amendment would turn our federal government, including Congress, administrative agencies, and federal courts, into an advisory body – a kind of commission serving fifty separate legislatures – and its laws and regulations in the long run would amount to mere recommendations the states could choose to adopt or ignore. This arrangement may seem flattering to the state legislatures considering the amendment, but it does the people no good.

The amendment would be a boon for lobbyists, however. The federal lobbying industry would field representatives in all fifty state capitals as well as in Washington. And only the largest moneyed interests would be likely to afford to support or counter a Congressional act or an administrative regulation through the labyrinthine route to its eventual approval or repeal in fifty different statehouses. The voice of the people would be diluted.

It is worth remembering that the Founders saw the federal government as the product of the people and not of the states. Although the Constitution was ratified state by state, the Framers made a point of requiring a special convention in each state for the purpose of ratifying the Constitution so that the people, and not the state legislatures, would be said to have ordained and established the Constitution. In The Federalist Papers, James Madison made a distinction between the people and the states when he countered arguments that the Constitution would take away too much of the states’ powers:

Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the governments of the individual States, that particular municipal establishments, might enjoy a certain extent of power and be arrayed with certain dignities and attributes of sovereignty? [Federalist No. 45]

As Professor Harry V. Jaffa, author of Crisis of the House Divided (Chicago 1959) and founder of the conservative Claremont Institute, has demonstrated, the compact that created the American people was the Declaration of Independence and not the various English colonies that the states became the heirs of. That people, and not the thirteen former colonies, ratified the Constitution. “We the people” was no opening flourish but was substantive language argued over during the ratifying conventions, including Virginia’s.

The amendment threatens democracy’s most fundamental expression of the people’s sovereignty – the principle of majority rule. Its deleterious effect on majority rule stems from its links to nullification and to secession.

The amendment, like every attempt at state nullification of federal law since the nullification crisis of 1833, is an attack on majority rule. Notice how similar the amendment is to John C. Calhoun’s South Carolina doctrine, as described by Jaffa in his book A New Birth of Freedom (Rowman & Littlefield 2000):

By virtue of the reserved rights of the states, South Carolina could “nullify” the tariff within its boarders. Of course, if South Carolina did not pay the duties, neither would any other state. This meant that the operation of the challenged law would be held in abeyance until a convention of the states, acting by a three-fourths majority (the same that would be required for an amendment), would decide upon its constitutionality. (278)

In essence, Calhoun’s doctrine differs from the amendment only in the preliminary injunction it grants against federal law pending the states’ decision.

The logic of allowing the states to nullify acts of Congress is the logic of secession. What Lincoln pointed out about secession during his First Inaugural Address applies also to the amendment:

Plainly the central idea of secession is the essence of anarchy. A majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people. Whoever rejects it does of necessity fly to anarchy or to despotism. Unanimity is impossible. The rule of a minority, as a permanent arrangement, is wholly inadmissible; so that, rejecting the majority principle, anarchy or despotism in some form is all that is left.

If the lesser (state government) can nullify the greater (federal government), then majority rule is threatened. The amendment’s logic is secession’s logic downstream, too. Just as Union supporters asked the seceding states of the 1860’s if they would consent to having their counties and municipalities secede from them, so one may ask if the states are prepared to give as well as they get. May two-thirds of the governing bodies of a state’s counties and municipalities overturn a state statute? And, further, may individuals acting in their capacity as sovereign people then overturn municipal law? The amendment’s central idea is indeed the “essence of anarchy.”

Both nullification and secession are premised on Calhoun’s doctrine of concurrent majority: Congress and state governments both must pass on federal laws. “Stated in its simplest form, the concurrent majority gives to each minority entitled to consideration a veto over the action of the government” (432). Calhoun believed that the state’s right to nullify a federal law and its right to secede (or, practically speaking, to threaten secession) would protect minority interests. Madison, the Father of our Constitution, believed that a republic founded on natural law principles protects minority rights. Calhoun’s understanding of minority rights, however, was not founded on the natural law concept of a compact made by individuals. He found no individual rights antecedent to the creation of any government. Indeed, for Calhoun, the idea that all men are created equal and have rights antecedent to a government’s existence “is the most false and dangerous of all political errors” (407). There is no basis for the doctrine of concurrent majority on which the amendment is based in either the Declaration of Independence or the Constitution. Nor could there be, as the doctrine recognizes neither individual rights nor majority rule.

This is a long letter – the longest I have ever written to any of my representatives in Richmond or Washington – but I hope it suggests the difficult issues involved in considering this seemingly simple amendment. Unlike the constitutional amendments that have been ratified since the end of the Civil War, this amendment would fundamentally alter our federal system. In so doing, it would detach our system from the practical and philosophical moorings James Madison and other illustrious Virginians and Americans tied it to over two hundred years ago in Philadelphia.

Any pride some Virginians may feel in bringing this proposed amendment to national prominence should pale in comparison to the pride Virginians might take in the Commonwealth’s role in ratifying the original Constitution. The arguments for and against the Constitution’s form of federalism had their finest airing at Virginia’s ratifying convention in Richmond during the summer of 1788. Many of Virginia’s greatest patriots and statesmen, including James Madison, Patrick Henry, George Mason, John Marshall, George Wythe, Edmund Pendleton, Edmund Randolph, and James Monroe, were present to argue for or against the Constitution. It was a close vote, but the Constitution beat out the Articles of Confederation. The assemblage that would presume to disrupt the Constitution’s checks and balances in Richmond this winter would not look particularly distinguished by comparison.